Finnegan v. US Bank

Filing 5

ORDER Denying 2 Motion for Leave to Proceed in Forma Pauperis. Should Plaintiff wish to file an amended complaint curing the deficiencies noted above, Plaintiff must do so within thirty (30) days of the date of this Order. Signed by Judge Gonzalo P. Curiel on 4/28/21. (All non-registered users served via U.S. Mail Service, including blank IFP)(dlg)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 SEAN MATTHEW FINNEGAN, Case No.: 21-cv-0620-GPC-BLM Plaintiff, 12 13 v. 14 ORDER: US BANK, 15 (1) DENYING PLAINTIFF’S MOTION TO PROCEED IN FORMA PAUPERIS; AND Defendant. 16 (2) SUA SPONTE DISMISSING COMPLAINT 17 18 [ECF Nos. 1, 2] 19 20 Plaintiff, proceeding pro se, filed a Complaint and subsequently filed a Motion to 21 Proceed In Forma Pauperis (“IFP Motion”). ECF Nos. 1, 2. The Court DENIES 22 Plaintiff’s IFP Motion and sua sponte DISMISSES the Complaint. 23 24 PLAINTIFF’S IFP MOTION All parties instituting any civil action, suit or proceeding in a district court of the 25 United States, except an application for writ of habeas corpus, must pay a filing fee of 26 $402. See 28 U.S.C. § 1914(a) (discussing the $350 statutory fee and $52 administrative 27 28 1 21-cv-0620-GPC-BLM 1 fee). The action may proceed despite this requirement only if the plaintiff is granted IFP 2 status pursuant to 28 U.S.C. § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 3 (9th Cir. 2007). The plaintiff must submit an affidavit demonstrating plaintiff’s inability 4 to pay the filing fee, and the affidavit must include a complete statement of the plaintiff’s 5 assets. 28 U.S.C. § 1915(a)(1). The facts in the affidavit must be stated “with some 6 particularity, definiteness, and certainty.” United States v. McQuade, 647 F.2d 938, 940 7 (9th Cir. 1981). When a plaintiff moves to proceed IFP, the court first “grants or denies 8 IFP status based on the plaintiff’s financial resources alone and then independently 9 determines whether to dismiss the complaint” pursuant to 28 U.S.C. § 1915(e)(2). 10 11 Franklin v. Murphy, 745 F.2d 1221, 1226 n.5 (9th Cir. 1984). Here, Plaintiff supplied a form application to proceed IFP. ECF No. 2. However, 12 the details provide no particularity, definiteness, or certainty as to Plaintiff’s financial 13 status. Plaintiff left the majority of the form blank, with one line indicating that he 14 receives a monthly income of $289.15. Id. at 2. The employment section indicates that 15 Plaintiff is employed, but the gross monthly pay is listed as zero, which inherently makes 16 little sense without further explanation. Id. Finally, Plaintiff alleges that “Bank is 17 holding funds hostage,” id. at 5, but provides no explanation on the circumstances or 18 what that statement even means. In sum, Plaintiff’s filing does not give the Court 19 adequate information from which to determine whether he is unable to pay the $402 fee. 20 Accordingly, the Court DENIES without prejudice Plaintiff’s IFP Motion, ECF 21 No. 2. Should Plaintiff wish to proceed in this case, he must either pay the filing fee or 22 provide a completed affidavit that shows his inability to pay the fee. Plaintiff is advised 23 that Local Civil Rule 3.2(a) provides the requisite information to be included. The Court 24 additionally DIRECTS the Clerk to provide Plaintiff with a blank copy of the Southern 25 District of California’s “Motion and Declaration Under Penalty of Perjury in Support of 26 Motion to Proceed In Forma Pauperis.” 27 28 2 21-cv-0620-GPC-BLM 1 2 SUA SPONTE SCREENING A complaint filed by any person proceeding IFP, pursuant to 28 U.S.C. § 1915(a), 3 is additionally subject to mandatory sua sponte screening. The Court must review 4 complaints filed by all persons proceeding IFP and must sua sponte dismiss any 5 complaint, or any portion of a complaint, which is frivolous, malicious, fails to state a 6 claim, or seeks damages from defendants who are immune. See 28 U.S.C. § 7 1915(e)(2)(B); Lopez v. Smith, 203 F.3d 1122, 1126–27 (9th Cir. 2000) (en banc). 8 All complaints must contain “a short and plain statement of the claim showing that 9 the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are 10 not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by 11 mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 12 (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “Determining 13 whether a complaint states a plausible claim for relief [is] . . . a context-specific task that 14 requires the reviewing court to draw on its judicial experience and common sense.” Id. 15 The “mere possibility of misconduct” falls short of meeting this plausibility standard. 16 Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). 17 “When there are well-pleaded factual allegations, a court should assume their 18 veracity, and then determine whether they plausibly give rise to an entitlement to relief.” 19 Iqbal, 556 U.S. at 679; see also Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000) 20 (“[W]hen determining whether a complaint states a claim, a court must accept as true all 21 allegations of material fact and must construe those facts in the light most favorable to 22 the plaintiff.”); Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (noting that 23 Section 1915(e)(2) “parallels the language of Federal Rule of Civil Procedure 12(b)(6).”). 24 However, while the court “ha[s] an obligation where the Plaintiff is pro se, particularly in 25 civil rights cases, to construe the pleadings liberally and to afford the Plaintiff the benefit 26 of any doubt,” Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir. 2010) (citing Bretz v. 27 28 3 21-cv-0620-GPC-BLM 1 Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985)), it may not “supply essential elements 2 of claims that were not initially pled,” Ivey v. Bd. of Regents of the University of Alaska, 3 673 F.2d 266, 268 (9th Cir. 1982). 4 Moreover, the federal court is one of limited jurisdiction. Kokkonen v. Guardian 5 Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). It possesses only that power authorized 6 by the Constitution or a statute. See Bender v. Williamsport Area Sch. Dist., 475 U.S. 7 534, 541 (1986). It is constitutionally required to raise issues related to federal subject 8 matter jurisdiction and may do so sua sponte. Steel Co. v. Citizens for a Better Env’t, 523 9 U.S. 83, 93–94 (1998); see also Indus. Tectonics, Inc. v. Aero Alloy, 912 F.2d 1090, 1092 10 11 (9th Cir. 1990). Here, the Complaint is wholly deficient and fails to establish how this Court has 12 subject matter jurisdiction. As a starting matter, there is no diversity jurisdiction. See 28 13 U.S.C. § 1332(a). Plaintiff avers otherwise, but the Complaint indicates that both 14 Plaintiff and Defendant are citizens of California. See Compl. 3–4, ECF No. 1. 15 The only cause of action apparent in the Complaint is 15 U.S.C. § 1692d, which 16 Plaintiff also claims is the basis for federal question jurisdiction. Section 1692d prevents 17 a “debt collector” from engaging in any conduct “which is to harass, oppress, or abuse 18 any person in connection with the collection of a debt,” and enumerates specific incidents 19 of prohibited conduct, such as “use of violence” or “profane language,” see, e.g., 15 20 U.S.C. § 1692d(1), (2). 21 Yet no part of Plaintiff’s Complaint establishes how Defendant constitutes a “debt 22 collector,” which is a specific term defined in 15 U.S.C. § 1692a(6). Further, Plaintiff’s 23 Statement of Claim fails to demonstrate how Defendant’s alleged acts meet any of the 24 prohibited conduct articulated in Section 1692d. Plaintiff’s conclusory remarks such as 25 “harassing and abusing,” “The defendant is in breach,” “The defendant stole the entire 26 balance,” or “for the fraudulent transaction the bank itself had conducted,” see Compl. 4, 27 28 4 21-cv-0620-GPC-BLM 1 ECF No. 1, are all rejected pursuant to the standard for an adequate pleading, discussed 2 supra pages 3–4 of this Order. In sum, the Court finds that the Complaint does not allege 3 a colorable 15 U.S.C. § 1692d claim sufficient to invoke federal question jurisdiction. 4 Cf. Arbaugh v. Y & H Corp., 546 U.S. 500, 513 n.10 (2006) (“A claim invoking federal 5 question jurisdiction . . . may be dismissed for want of subject-matter jurisdiction if it is 6 not colorable, i.e., if it is ‘immaterial and made solely for the purpose of obtaining 7 jurisdiction’ or is ‘wholly insubstantial and frivolous.’”). 8 9 10 Because Plaintiff’s Complaint “fails to state a claim on which relief may be granted,” 28 U.S.C. § 1915(e)(2)(B)(ii), and because the Court lacks subject matter jurisdiction, the Court sua sponte DISMISSES the Complaint. 11 12 13 14 CONCLUSION For the reasons discussed above, the Court DENIES Plaintiff’s Motion to Proceed In Forma Pauperis and sua sponte DISMISSES the Complaint. Should Plaintiff wish to file an amended complaint curing the deficiencies noted 15 above, Plaintiff must do so within thirty (30) days of the date of this Order. The Clerk 16 of Court shall mail to Plaintiff a blank copy of the Southern District of California’s 17 “Motion and Declaration Under Penalty of Perjury in Support of Motion to Proceed In 18 Forma Pauperis.” Otherwise, the case will remain closed. 19 IT IS SO ORDERED. 20 21 Dated: April 28, 2021 22 23 24 25 26 27 28 5 21-cv-0620-GPC-BLM

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